Madelene Alagano et al. v. Miniworld Management, 1994 CanLII 9887

[1994] OLRB Rep. April 455

0200-94-M Madelene Alagano, Catalina Alvarez, Elizabeth Araujo, Eleen Buck­ley, Suzanna Cabral and Susan Chislett, Applicants v. Miniworid Management, Operating as North York Infant Nursery and Preschool, Responding Party

BEFORE: S. Liang, Vice-Chair.

APPEARANCES: Michael Wright, Susan Chislett and Suzanna Cabral for the applicant; MartinDen yes, Myo Yoon and Brian Wylkynko for the responding party.

DECISION OF THE BOARD; April 25, 1994

1. This is an application for interim relief made pursuant to the provisions of section 92.1 of the Labour Relations Act, and heard before me today. The applicants request that they be reins­tated to their employment with Miniworld Management, Operating as North Yonge Infant Nur­sery and Preschool ("Miniworld" or "the employer"), on an interim basis, pending the disposition of a complaint filed under section 91 of the Act.

2. I have before me the application and response, and supporting declarations of Susan Chislett, Myo Yoon and Robin Caskenette.

3. Although there are certain factual disputes in the materials before me, there is also sub­stantial common ground and matters which are not disputed. At the time of the events in question, there were nine employees of the day care centre operated by the employer under the name North Yonge Infant Nursery and Preschool, plus a supervisor. These employees decided that they wished to negotiate with the employer over the terms and conditions of their employment. The declaration of Susan Chislett states:

As a result of our discussions we decided to bargain collectively with Ms. Yoon. Though we are not represented by a trade union, we decided that we would have the greatest chance of success in improving our wages and working conditions if all of the employees bargained together. We decided to form an association for the purpose of collective bargaining and to request that Ms. Yoon recognize us as representing all of the employees at the North Yonge Infant Nursery and Preschool, with the exception of our supervisor. We drafted a statement setting out our dissatis­faction with our working conditions and myself and the other eight employees signed the state­ment. The statement noted that all of the employees felt that working conditions needed to be improved. We signed the statement on March 29, t994.

4. A representative of the group, Susan Chislett, provided this statement to their supervi­sor on the following day. The day after this, Thursday, March 31, Ms. Chislett met with Myo Yoon, the owner. Ms. Yoon advised Ms. Chislett that she required a week or so to consider the demands. On Tuesday, April 5, the employment of Ms. Chislett and Marie Di Prospero, a proba­tionary employee, were terminated. The letter of termination to Ms. Chislett states,

Recently you have brought to my attention the fact that you are no longer satisfied with the terms of our original employment agreement. Unfortunately, at this time, I am unable to make any changes. I do feel however, that I am no longer able to work compatibly with you due to your dissatisfaction with your job. This has a negative effect on the running of the centre.

Therefore, I have made the decision to terminate your position with North Yonge Infant Nur­sery. I regret that you have been unhappy in your employment with us. In lieu of notice I will be paying you three weeks full pay. Your final pay cheque and severence [sic] pay along with sepa­ration papers will be mailed to you within three days.

5. The letter to Ms. Di Prospero states that her probationary period is coming to an end, and "[M]anagement feels at this time that we will no longer be employing you with our company."

6. On the morning of April 6, the employees picketed in front of the day care centre in response to the terminations and in order to advise the parents of the working conditions. At approximately 2:30 p.m., the other seven employees had their employment terminated. Their let­ters of termination state:

This letter is to inform you that effective immediately your employment with North Yonge Infant Nursing Preschool is terminated. By not coming to work today you have shown willful neglect for your position at the centre. Your termination is effective April 6, 1994, tendered by this notice.

7. The declaration of Ms. Chislett states that some of her co-workers have advised her that they are too upset or afraid to return to work with the employer. As a result, only six of the nine employees who had their employment terminated are the applicants in the proceedings before me. Ms. Chislett also declares that if the interim order is not granted, her fear is that her co-workers will become so discouraged and afraid that their attempt to form an association for the purposes of collective bargaining will have been destroyed.

8. Section 92.1(1) of the Act provides:

92.1-(1) On application in a pending or intended proceeding, the Board may grant such interim orders, including interim relief, as it considers appropriate on such terms as the Board considers appropriate.

9. In J. C. V.R. Packaging Inc.,[1993] OLRB Rep. Nov. 1145, the Board discussed its approach to applications for interim orders:

10. In the Board's previous cases dealing with interim orders, the Board has discussed the place of interim relief in the context of alleged unfair labour practices: see, for example, 810048 Ontario Limited c.o.b. as Loeb Highland, [1993] OLRB Rep. March 197; Tate Andale Canada Inc., [1993] OLRB Rep. Oct. 1019. The Board has said that interim relief is warranted where it may serve to "neutralize the potential impact of an alleged unfair labour practice" (see Tate Andale Canada Inc.), preserve the right of the union to a meaningful remedy should the com­plaint be upheld (see Reynolds-Lemmerz Industries, [1993] OLRB Rep. March 242) or preserve a "status quo" in order to provide some stability within which litigation over labour relations disputes may proceed (see New Dominion Stores, a division of the Great Atlantic and Pacific Company of Canada, Limited,

11. Within this context, the Board's determinations under section 92.1 involve applying a two-step inquiry. Firstly, the Board assesses, on the basis of the materials before it, whether there is any apparent merit to the complaint which forms the basis for the request for interim relief. In this assessment, the Board in no way makes a finding or determination as to the actual merits ofthe complaint - that is for the panel which hears the complaint to decide. Rather, the Board takes a preliminary view of the matter in order to assess whether, assuming that the facts relied upon by the applicant are true, the applicant has shown an arguable case for the relied sought in the main complaint.

12. The second assessment that I must make is whether assuming the applicant has shown an arguable case, the harm in not granting interim relief outweighs the harm of granting it, such that it would be more consistent with the purposes of the Act, the exercise of the rights under the Act, and the purposes of interim relief, to grant the orders requested.

13. In the case before us, the employer asserts that the applicants have not made out an arguable case that the Act has been violated. This is because the sections of the Act which the applicants state have been violated by the employer's actions speak to trade union activity. Here, it is clear even from the applicants' declaration that there is no issue of trade union representation in these facts. Counsel states that this would be quite a different case if there had been an organizing drive by a trade union.

14. Counsel for the employer submitted that simply engaging in collective action does not bring these applicants under the protection of the Act. The Act protects collective action taken within certain parameters. These parameters dictate that collective bargaining takes place through a trade union as that is defined in the Act. Further, to the extent that the Board assesses whether or not an organization should be accorded the status of a trade union in, for example, a certifica­tion application, the Board requires evidence of a structure with a constitution, officers, and mem­bers. Here, there is no such structure.

15. The employer also requests that the Board dismiss the complaint in Board File 0201- 94-U as failing to make out a case, pursuant to Rule 24 of the Board's Rules of Procedure.

16. The employer raises an interesting issue, which is to what extent the Act protects employees who wish to negotiate collectively with their employer, without a yet- apparent trade union organization or formally created association representing them. There is no doubt that these employees have decided to bargain collectively with their employer. Does the absence of a formal structure through which these efforts have been made deprive them of their right not to be discri­minated against, suffer reprisals or be discharged because of these efforts?

17. As I have stated, it is an interesting issue, and an important one as well. It is not at all apparent to me that there is no arguable case that these applicants are protected by the provisions of the Act. It is not apparent that when sections 67 and 71 speak of the protection of persons who are exercising their rights under this Act, that this protection only applies once an organization of employees has become sufficiently formalized that it would be granted "status" as a trade union in the context of a certification application. Indeed, such an interpretation of sections 67 and 71 might only encourage earlier intervention by employers who wish to avoid potential collective bargain­ing.

18. A trade union can be a very sophisticated and complicated entity, with thousands of members, or it may be something much less. The Act defines "trade union" as "an organization of employees formed for purposes that include the regulation of relations between employees and employers.. " The Act also anticipates that a collective bargaining relationship can be established without a certification procedure under the Act or any determination by the Board.

19. On the materials before me, it appears that a group of employees in a small workplace have attempted, in a very rudimentary and preliminary fashion, to begin the process of organizing themselves for the purpose of negotiating terms and conditions of employment with this employer. It is not for me to decide whether, having heard the evidence and arguments of the parties, another panel of this Board may determine that the efforts by these employees take place entirely outside of the provisions of the Act. I am satisfied that there is at least an arguable case that sections 67 and 71 apply to the facts before me and that these employees were engaged, in their own fashion, in attempting to establish an association that might have acquired the characteristics of a "trade union under the Act. I am also satisfied that there is at least an arguable case that the termina­tions of all of these employees was motivated at least in part by their participation in the effort to negotiate collectively with their employer (without seeking to ignore the employer's stated ratio­nale for the termination of the remaining employees on April 6 after the picketing activity).

20. I also find that the balance of harm favours the granting of the relief. It is telling that only six of the nine employees who had their employment terminated have chosen to participate in these proceedings. It can hardly be surprising that these terminations have had an effect on the willingness of these employees to pursue further collective action. In a number of decisions, the Board has observed that there can be few actions as damaging to the willingness of employees to pursue self-organization than the discharge of union supporters or organizers: see, for instance, Loeb Highland, [1993] OLRB Rep. March 197. In Tate Andale Canada Inc., [1993] OLRB Rep. Oct. 1019, the Board discussed the effects of such actions, and the role of interim relief in helping to offset these effects:

21. Where interim relief is sought in connection with an unfair labour practice complaint, one must keep in mind the legal rights and administrative processes that the law is intended to pro­tect; or to put the matter another way, the rights and processes which the impugned conduct may (and may be intended to) undermine. In the context of a union organizing campaign, those rights include not only an individual right to choose without fear of reprisal, but also a correla­tive group right of self-organization, so that employees may establish a collective bargaining relationship in the manner contemplated by the statute. A remedial philosophy that focuses exclusively on repairing the harm to individual victims, and neglects the general assault on free­dom of association, will inevitably fail to promote the statutory objective.

22. If the employer's purpose were only to punish the individual worker for supporting the union, the law might well redress the harm by restoring him/her to the job, and making up the income that s/he has lost. But if the real objective is to break the momentum of the organizing campaign, to eliminate an influential employee advocate, or to send a graphic message to other employees, the set-back to the employees' quest for a collective voice in the workplace may not be so readily remedied.

23. It is not easy to calculate the value of the employees' "lost opportunity" to make a fair and free choice about trade union representation. It is not easy to repair an administrative process that depends for its efficacy on the free exercise of employee wishes. It is not easy to assess the value of lost leadership in the formative stages of an organization - although it is perhaps self-ev­ident that a voluntary organization, be it a club, church or trade union, depends upon the zeal and commitment of its core members. However intangible these qualities of energy or commit­ment may be, a voluntary organization like a trade union cannot form or function without them - particularly in its early stages when workers may be unfamiliar with their rights, when the stat­utory freeze or "just cause protection" may not yet have been triggered (see sections 81 and 81.2 of the Act) and employers may be more inclined to resist unionization, legally or illegally. For it is a sad fact of the industrial relations scene that almost fifty years after the employees' right to collective bargaining was entrenched in law, some employers continue to resist the exer­cise of those rights, or penalize employees who dare to do so. That is why section Itt of the Act preserves the anonymity of union supporters, lest their identification expose them to employer reprisals. If the Legislature had been confident that employees had nothing to fear, or Board remedies were a complete answer to illegality, it would not have shrouded the organizing process with such secrecy (incidentally reversing, by statute, the decision of the Supreme Court of Canada in Globe Printing Co. 1953 CanLII 10 (SCC), 3 DLR 561).

24. A remedial approach that does not take into account these labour relations realities will nec­essarily be deficient, and to that extent ineffective, as either redress or deterrent.

25. Where the Board concludes that a breach of the Act has occurred, it is required to construct a remedy that is sensitive to these concerns and, insofar as possible, rectifies the labour relations status quo disrupted by the illegal act. Where the Board is called upon to grant interim relief in a "pending or intended proceeding", it must consider whether an affirmative order is necessary either to neutralize the potential impact of an alleged unfair labour practice, or to enhance the Board's ability to address the labour relations situation, whether or not an unfair labour practice has occurred.

26. It must be recognized that early intervention, stressing immediacy rather than severity, can have a powerful preventive effect and reduce the necessity for later more intrusive action. Whatever balance may commend itself in particular cases, self ordering is preferable to Board intervention, and an early, moderate response may encourage accommodation and may be pref­erable to a later, more intrusive one. It is in no one's interest to encourage layers of litigation. If timely interim relief offsets the potential advantage of illegal action, discourages such action, promotes settlement or reduces the likelihood of further litigation, such results are all com­pletely consistent with the statutory objective.

27. It is essential that Board orders - interim or final - be sensitive to the realities of the work­place; and one such reality is the employee's ignorance of the law. One cannot realistically expect rank and file employees to be familiar with their rights under the Labour Relations Act. But one can be sensitive to their fears, and responsive to the concern that the law may favour those with economic power or the ability to act unilaterally. Accordingly, quite apart from the relief available to aggrieved individuals, there may be an independent value in an order that reassures other workers that the law stands above the fray, and proclaims that the legal result will rest on statutory principles, not the personality or relative power of the participants. In our system of industrial relations there is ample scope for the exercise of economic power, but it is not, and cannot be, the basis for resolving statutory rights.

28. Whether or not the events before me can be considered an "organizing drive", there is nothing before me that suggests that these terminations will not cast the same kind of pall of the employees' willingness to pursue collective self-organization, as they would if they had occurred within a more conventional trade union organizing drive.

29. The harm which the employer asserts will occur in the event of interim reinstatement is that "[c]hildren and parents have reacted negatively to the disruption caused by a change in staff and another change in staff could cause irreparable harm to the relationship between parents, chil­dren and the day-care". I am not convinced that this outweighs the matters discussed above. In fact, it is not clear that, if the change in staff has been received "negatively" by children and par­ents, the return of the usual caregivers, the applicants, will be less beneficial than the continuation in employment of others who have only been employed for a few weeks.

30. For these reasons, I make the following interim orders, which are in effect until the dis­position or resolution of the unfair labour practice complaint in Board File No. 0201-94-U:

(a) an order reinstating Madelene Alagano, Catalina Alvarez, Elizabeth Araujo, Eleen Buckley, Suzanna Cabral and Susan Chislett to employment, forthwith:

(b) an order that the Board Notice as set out in Appendix A shall be posted in conspicuous places in the workplace. The Notice shall remain posted for 60 working days or until the disposition or resolu­tion of Board File No. 0201-94-U, whichever is earlier.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

THE BOARD HAS ORDERED MINIWORLO MANAGEMENT. OPERATING AS NORTH YORK INFANT

NURSERY AND PRESCHOOL TO REINSTATE MADELENE ALAGANO. CATALIHA ALVAREZ. ELIZABETH ARAUJO. ELEEN BUCKLEY, DUZANNA CABRAL AND SUSAN CHISLETT UNTIL THE BOARD DECIDES WHETHER THE-JR DISCHARGES WERE LEGITIMATE.

A HEARING BEFORE THE BOARD IS SCHEDULED TO BEGIN ON MAY 10. 5994. THE PURPOSE

OF THAT HEARING IS TO DETERMINE WHY THE ABOVE EMPLOYEES WERE DISCHARGED.

IF THE BOARD IN THE END DECIDES THAT THE REASONS FOR THE DISCHARGES HAD NOTHING

TO DO WITH THE EXERCISE OP RIGHTS UNDER THE LABOUR RELATIONS ACT. THEN THE TEMPORARY REINSTATEMENT ORDER WILL BE REVOKED AND TNE COMPANY WILL NO LONGER HAVE TO EMPLOY THEM..

IF THE BOARD IN THE END DECIDES THAT THE DISCHARGES OCCURRED BECAUSE THE

EMPLOYEES WERE EXERCISING RIGHTS UNDER THE ACT. THE BOARD MAY CONFIRM THE TEMPORARY ORDERS.

EMPLOYEES IN ONTARIO HAVE THESE RIGHTS WHICH ARE PROTECTED BY LAW~

AN EMPLOYEE HAS THE RIGHT NOT TO BE DISCRIMINATFO AGAINST OR

PENALISED OR THREATENED OR FORCED TO DO ANYTHING OR NOT TO DO

ANYTHING BY AN EMPLOYER OR A TRADE UNION DR A REPRESENTATIVE OP

AN EMPLOYER OR A TRADE UNION BECAUSE HE OR SHE IS EXERCISING

RIGHTS UNDER THE LABOUR RELATIONS ACT.

AN EMPLOYEE HAS THE RIGHT TO JOIN A TRADE UNION OF HIS OR HER

OWN CHOICE AND TO PARTICIPATE IN ITS LAWFUL ACTIVITIES.

AN EMPLOYEE HAS THE RIGHT NOT TO BE PENALIZED OR THREATENED OR

FORCED TO DO ANYTHING OR NOT TO DO ANYTHING BECAUSE HE OR SHE

PARTICIPATED IN A PROCEEDING UNDER THE LABOUR RFLATIONS ACT

INCLUDING ATTENDING A HEARING AS A WITNESS OR A POTENTLAL

WITNESS.

AN EMPLOYEE HAS THE RIGHT TO REMAIN NEUTRAL. TO REFUSE TO SIGN

DOCUMENTS OPPOSING A UNION OR TO REFUSE TO SIGN A UNION

MEMBERSHIP CARD.

IF AN EMPLOYEE IS PENALIZED OR THREATENED OR FORCED TO DO ANYTHING OR NOT TO 00

ANYTHING FOR EXERCISING ANY OF THESE RIGHTS. A COMPLAINT MAY BE PILED WITH THE ONTARIO LABOUR RELATIONS BOARD.

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.

DATED .this 25TH day of APRIL . 1994

~S9D LRSZ L,SHI